We just bought tickets for ourselves and a dear visiting colleague to see Barry Manilow in concert next month. We love everything about Barry – his songwriting (we orchestrated many a youthful breakup with “Even Now” played over and over again), his chutzpah (just shy of his 79th birthday, he premiered a new musical,
TwIqbal
Design Defect Claim Dismissed in W.D.N.Y. Fosamax Case

We write today from a room in a rehabilitation facility, where we just shared the Drug and Device Law Dowager Countess’s lunch. The Countess, nearly 88, plunged down a flight of eight concrete stairs 12 days ago and managed to emerge with three broken ribs (one in two places) and no other injuries. A painful…
Fifth Circuit Affirms Dismissals and Summary Judgment in Defibrillator Case out of the Eastern District of Louisiana

This post is from the non-Winston & Strawn side of the blog.
As we write today, we are nine days from an event, two years in the planning, that we have mentioned in these pages before. We are taking the Drug and Device Law Dowager Countess (nearly 88) and her slightly younger sister to see…
Partial “PMA Preemption” Victory in D.S.C. Pacemaker Case

As we write this, our firm’s “return to office” date is less than two weeks away. We will be delighted to see, hug, and collaborate in person with colleagues we’ve missed for two long years (computer visages notwithstanding), though we confess to panic at the prospect of “real clothes.” And shoes. It’s all a bit…
Conclusory Allegations Don’t Cut It In External Pacemaker Case

As we age, we sometimes forget how things used to be. It is not just age-related deterioration of the synapses in our hippocampi. (We do question why hippocampi and hippopotamuses are the preferred plural forms these days and why more anatomic structures are not named for things like seahorses.) There is also a recency effect. …
Pleading Preemption As A Defense In A Privacy Class Action

Critics have been known to accuse us of being too hard on product liability plaintiffs and too forgiving of defendants who develop medical products. We all have our biases, especially after many collective decades of representing the latter group, but we do think the table is often tilted in favor of the former group. One…
We’re Not in the MDL Anymore: Mesh Complaint Fails to Satisfy Twiqbal in the District of Arizona

Like many of you, we spend a large portion of our professional life litigating cases consolidated in MDLs. MDLs serve a purpose in this “mass tort” world, but they also breed laziness and complacency among plaintiff lawyers who amass “inventories” of clients they’ve never met and about whose claims they know nothing in the hope…
Eastern District of Kentucky: “Voluntary Recall” Doesn’t Equal “Defect”

The issue of product recalls rears its head a lot in our medical device practice. Or non-recalls, to be more precise. In the unsavory world of plaintiff solicitation, we have seen, over and over again, that plaintiff firms and their “phone banks” recruit potential plaintiffs by telling them that devices that remain in their bodies…
Twiqbal Triumphs, Albeit Without Prejudice, in W.D. Texas Hernia Mesh Decision

In these strangest of times, we find ourselves seeking comfort in the familiar. Many times each day, we dial the numbers of faraway loved ones, just to hear their voices (the twenty-something Drug and Device Law Rock Climber has threatened to block our number). We gravitate toward favorite foods of our childhood (we just resorted…
Most Claims Dismissed with Prejudice in N.D. Cal. Amiodarone Case

Indulge us for a moment as we recount another airline adventure. Recently, we traveled thousands of miles to an important argument. Our first flight boarded right on time, left the gate right on time, and taxied down the runway . . . partway. Then stopped. Enter the inevitable announcement: “Ladies and gentlemen, we’re very sorry,…